Policy Alert: Domestic Violence
We now have a new policy in India about domestic violence.
Does it really protect our rights?
We now have a new policy in India about domestic violence. Does it really protect our rights?
Violence against women takes place in myriad forms all over the region and different countries have responded to this violence through various laws and policies and other forms of State action. Violence against women whether in homes or outside is reflective of the power structures and the hierarchies that have been constituted in society which relegate the status of women to be only after that of men. This is a complex area of study and research as the texture and forms of violence varies with variables such as that of caste, race, community, religion, class, level of education, marital status, etc. Dealing with violence against women in domestic relationships also takes intricate forms because of the complexity of relationships and various forms of inter-dependence between members of the same household.
In India, the Protection of Women from Domestic Violence Act, (PWDVA) was passed in the year 2005 after consistent advocacy and lobbying for several decades by the women’s movement to bring this about. It is a civil law, which aims at providing immediate and emergency relief to women facing violence in domestic relationships. The purpose of this Act is to provide to women the right to live in a violence-free home through the ‘Stop Violence’ orders passed by a Magistrate.
The Act does not create any new right and all existing laws continue to apply. The woman facing domestic violence can ask for the relief provided under this Act in any other legal proceeding pending before the Court, e.g. in a petition for divorce or maintenance or under section 498A of the Indian Penal Code or approach the Court directly for an order under this law.
For several decades we have had a criminal law, such as section 498A of the Indian Penal Code in place to address issues of violence against women. This section was formulated in the year 1983 to address cases of cruelty and harassment of women in the home by their husbands or members of their family. This was the only existing law addressing violence against women. However, because this is a criminal law, it fails to address the specific needs of women who may not want to opt for criminal redressal and instead decide on civil remedies. Also, section 498A is restrictive because it applies mostly to women in marital relationships and thus leaves other women out from the ambit of the law.
The Protection of Women from Domestic Violence Act however is much more comprehensive and deals with any woman who is in a domestic relationship and has lived or is living in a shared household with the perpetrator of violence and has been subjected to violence. This would therefore include mothers, daughters, sisters, wives, widows, daughters-in-law, women who are in bigamous marriages, women in relationships that are in the nature of marriage, etc. Complaints can also be lodged on behalf of children (both male & female). A Child under this law means any person below the age of 18 years and includes any adopted, foster or step child.
The complaint can be lodged against any adult man with whom the woman has been in a domestic relationship. An aggrieved woman can also lodge a complaint against any relative of the husband, including his female relatives if they perpetrate or are involved in the acts of violence committed. Under this law, domestic violence is constituted by any act, which includes physical, sexual, verbal, emotional or economic abuse, whether with the intention to coerce her or threaten to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security or otherwise.
The shared household means a household where the aggrieved person has lived or is living with the person against whom the complaint has been lodged owned or tenanted either singly or jointly. Under this law however, there can be no eviction from the shared household but there can be a protection order to ‘stop violence’, an order for compensation or an order for monetary relief. The law also talks about the appointment of a number of ‘protection officers’ in each district as may be considered necessary. These protection officers should by and large be mostly women. The role of a protection officer should be to facilitate the aggrieved woman to get relief from the court, to help the woman make an application to the Magistrate, to help her in obtaining legal aid, to provide her a list of service providers, to assist the Magistrate in discharge of his functions. However, one can also directly approach a magistrate and does not necessarily need a protection officer to go to the Magistrate’s Court.
Any complaint of domestic violence can be made either directly with the Police or to the magistrate or with the protection officer or through a service provider such as NGOs etc. Even if a woman does not want to apply for an order she is encouraged to file a Domestic Incident Report (DIR) which is an official standard format in which a complaint of domestic violence can be made as this can be used as evidence of domestic violence when making an application asking for relief later.
Because this is a civil law there can be no arrests pursuant to the filing of a complaint. Arrests can take place when an order of the court is violated, as violation of a court order is a cognizable offence. For arrests to take place the aggrieved woman will have to file an affidavit drawing the attention of the court to the fact of the breach and its nature. When the civil orders passed by the Magistrate is violated by the perpetrator, it becomes a criminal offence and the person can be punished with imprisonment. Therefore, if and only if the civil orders passed by the court are violated by a person, he can be arrested under the Act and in no other circumstance.
This law is comprehensive and looks at the specific needs of women in different relationships and does not discriminate between women who are married or single, whether the perpetrator of violence is a husband or the father. However, it leaves us with questions such as: Does it help to compartmentalize violence against various sections of society? Does violence occur only against women? If not, do we have a separate set of laws for men and women? Where do transgendered people fit in? Also, are the perpetrators of violence always men? What about violence against women in same-sex relationships?